Partial distributions are often a mine field for a personal representative and should be frowned upon except in cases of extreme need such as for medical or necessary living expenses. Partial distributions are also practical when there is an abundance of assets that can be readily distributed and few if any liabilities. Utah Code Annotated Section 75-3-704 allows a personal representative to “proceed expeditiously with the settlement and distribution of a decedent’s estate and except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order, or direction of the court, but may invoke the jurisdiction of the court in proceedings authorized by this code to resolve questions concerning the estate or its administration.” This is broad discretion for the personal representative. However, there is always risk when making a partial distribution. Utah Code Annotated Section 75-3-807 provides that a just claim may be made at any time but that the personal representative is personally liable if the partial distribution was made before the expiration for the presentation of claims and there was not adequate security obtained from the payee.

In other words, the personal representative cannot make a partial distribution to an heir and leave another heir or creditor at risk of not receiving their just amount. The risk is further exacerbated by the personal representative who makes a partial distribution to one heir but not to another. This situation may be avoided by informally informing the other heirs that a partial distribution is being made and the reason for such distributions.

In all cases any partial distribution should be accompanied by a release and waiver. This document is signed by the receiving party who is acknowledging receipt and releases the personal representative from liability with respect to the distribution.

Utah Law states that “An individual 18 or more year of age who is of sound mind may make a will.” U.C.A. Sect 75-2-501. Thus, there are two requirements: be 18 or older, and of sound mind. The first requirement is easy to meet and verify. If there is ever a question about the age of the testator, check a driver’s license or a birth certificate. The second requirement is usually what ends up in litigation.

The determination of competency is based on three factors. The testator needs to understand what the estate plan is doing and how it will be carried out in the documents. Along the same line, the testator must be able to know the elements and make reasonable judgment based on this knowledge. This knowledge simply need to be a general understanding and not all the details. Next, the testator must understand the general nature and extent of their property. The intake sheet is great evidence of this. Finally, the testator must recognize the natural objects of bounty meaning they need to understand who their heirs would be at their death. Again, the intake sheet can help provide evidence of this.

There are several types of will and they each have their own requirements. All wills, however, must be in writing as oral wills are not valid in Utah and video wills are not valid as well. A formal will requires that in addition to the will being in writing and signed by the testator or in the testator’s presence at the testator’s direction. The formal will must also be signed by at least two witnesses of the testator’s signing either at the time or within a reasonable time after such witnessing. The witnesses must be over the age of 18 and generally competent.

Utah Code Annotated Sect. 75-2-502 contains the requirements for a holographic will. Section (2) states that “A will that does not comply with Subsection (1) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.” This can be proved by extrinsic evidence.

A writing that fails to meet the statutory requirements for a formal will, self-proved will or even a holographic will can still act a will (or testamentary document) if by clear and convincing evidence it can be shown that the decedent intended the document or writing to constitute a will, an addition or alteration of the will, or a revival of a former will or a prior thereof.

If not properly created and executed, a will has no value other than possible creating a will contest. For this reason, if you are contemplating drafting a will, contact me or another competent attorney.

Yes. Everyone should have a power of attorney in place. A power of attorney is the legal document that allows your representative to access your accounts should you become incapacitated and unable to do so. Here are some general things to consider as you decide on your power of attorney:

You can have one or more personal representatives

You can make it broad (covering everything) or narrow (covering an account)

It will only trigger when you are deemed incapacitated and unable to make your own decisions

You should keep possession or control of it

You can tear it up or shred it at any time

Do not hesitate to get a power of attorney done. It is a legal necessity and should be part of everyone’s personal documents.

Creditors have the right to be paid from the estate of a deceased person. The estate’s responsibility is to notify known creditors (usually found by checking the deceased’s mail) and publishing notice in a newspaper that the any creditors of the deceased had better notify the personal representative of the deceased or the attorney of the estate of its claim. If a creditor fails to do this, the claim can be cancelled much like a bankruptcy.

If a creditor makes a claim against the estate, the personal representative must first determine if the claim is valid and then determine the amount of the claim. The personal representative can then either pay the claim (assuming there is money to pay the claim) or negotiate the amount of the claim.

If you die without a will or without having thought through how you want your loved ones to deal with your death (including dividing your stuff), you are left to the mercy of the court and intestacy laws. While it is true that your stuff will get taken care of, the hassle left for your heirs is significant. For instance,

Do you want them to have to decide who will represent your estate?

Do you want them to have to decide how decisions will be made?

Do you want them airing the family laundry in court?

Do you want them to have rely on the court’s schedule for when things can be taken care of?

Do you want them to remember you rather than the hassle your estate caused?

You simply should plan even if it is the most basic of plans. Please contact my office to begin the process at http://www.attorneydrew.com

A family member has passed and you find out that you are the personal representative of the estate. You have no experience at doing this and are not even sure what needs to be done. There are generally three phases for your next actions.

Phase One: Gather all documents and information for the deceased as quickly as possible. You will need to physically take control of these assets. Start getting the deceased’s mail. This is helpful to find out what has been going on in the deceased’s life. As you gather create an inventory of the assets. You will want to open probate with the probate court.

Phase Two: Continue gathering information. You will need to have the assets valued and provide notice to creditors. During this phase, it is critical that you are thorough and have all information regarding creditors and assets.

Phase Three: This is when the estate is closed. You have gathered the assets and have the liabilities before you. When all are paid (or denied) and distributions are made, the estate can be closed.

1. There is no estate plan in place
2. The estate plan was changed near the end of the deceased’s life
3. Someone got cut out of the will
4. The terms of the will or the trust have not been followed

There are generally two reasons to avoid probate litigation when possible:

1. Cost: Litigation is expensive. Most lawyers will bill by the hour and document review, document production, and court time are all very time consuming. There are times when the attorneys get more than the heirs.

2. Destruction of the Family: This is the hard unknown cost anytime relatives start fighting.

How to avoid probate litigation:

1. Put an estate plan in place.
2. Make your intentions clear in your plan and consider a letter explaining your reasoning.
3. Hire a competent attorney who can testify as to what your desires are and why you chose your actions
4. Do not change your estate plan to favor an heir when you are living with such heir.